STRADDLING THE FENCE

By David Parsons

January 2004

Scores of nations rushed last week to submit briefs to the International Court of Justice in The Hague on the legality of Israel’s security fence being erected in Judea/Samaria, with a surprisingly significant roster of Western countries taking Israel’s side.

The court will begin deliberations in the case on February 23, first by deciding whether it even has jurisdiction to deliver an “advisory opinion on the legal consequences” of the fence, as requested in a United Nations resolution narrowly passed by the General Assembly this past December.

A sharp division of opinion has emerged between Western democratic states that fear the case will “politicize” the court and Arab/Islamic countries that want the international tribunal to declare the fence – and indeed Israel’s entire presence in the disputed territories – illegal under the Geneva conventions on warfare.

THE WORLD’S COURT

The ICJ, established in 1946 as the principal judicial organ of the UN, consists of 15 justices elected by the Security Council and General Assembly to represent in one international tribunal the various civil legal systems operating in the world.

The Court serves two key roles: (1) Settling legal disputes between member states only when the two sides mutually consent to the court’s jurisdiction, and (2) issuing advisory opinions on legal questions referred to it by international organs and agencies.

The principal Palestinian legal claim before the Court will be that the fence violates the 1949 Geneva Convention on protection of civilians in times of war – a convention that outlawed many of the atrocities committed against Jews in Nazi-occupied Europe during World War II. This treaty requires that civilian populations in territories occupied by a foreign military force be treated humanely and that private property not be confiscated unnecessarily.

Since capturing the West Bank and Gaza Strip in the 1967 Six-Day War, Israel has contended that the Geneva conventions are not legally binding in the “disputed territories,” since the lands in question were never widely recognized as belonging to another nation signatory to the treaty. Nonetheless, Israel has voluntarily applied the humanitarian provisions of the conventions to the local Arab population.

For example, Israel has established a compensation process for Palestinians who have lost access to farmland due to the construction of the fence.

ON THE MERITS

Should the Court reach the point of actually ruling on the legality of the fence, there are many respected legal scholars, including former ICJ president Steve Shwebel, who have published writings supportive of Israel’s rights and claims in the territories.

Yet the Palestinian Authority and their allies in the Arab League are confident their arguments will win the day, a result that could immeasurably alter the contours of the dispute with Israel.

In one fell swoop, the Court could declare the Geneva Conventions legally binding on Israel in the territories, potentially rendering numerous Israeli actions there illegal, while also effectively ruling that the 1949 armistice line around Judea/Samaria (the so-called Green Line) is the de jure border of Israel. These would be huge public relations victories for the Palestinians and entice them to seek the Court’s intervention against Israel on other contentious matters.

Israel’s strategy has been to challenge the very authority of the Court to hear the case, and some 30 Western democratic states have submitted affidavits concurring with this position. This includes 15 members of the European Union and ten members-in-waiting, as well as the United States, Canada, Australia, Russia, South Africa and Senegal.

Many of these states abstained in the December voting on the resolution asking the ICJ to render an opinion, but they have since become increasingly concerned the whole exercise could undermine the Court’s vital and independent judicial role in international disputes.

While the US and other supportive states object to the fence’s encroachment into Judea/Samaria, they know a ruling in favor of the Palestinians could harden Arab positions and hamper peace negotiations with Israel.

On the merits, Israel insists its unilateral raising of the fence is a legitimate act of self-defense to prevent entry of suicide terrorists, and that it does not constitute a legal border.

The Geneva conventions, through its Article 27, would expressly give the Israeli military administration the right to take such measures of “control and security” as may be “necessary as a result of the war.”

The US-led coalition in Iraq is currently undertaking similar “fence building” actions in Baghdad and elsewhere, just as British troops have maintained “peace lines” between feuding communities in Northern Ireland for several decades.

In addition, the Palestinians repeatedly acknowledged in successive Oslo accords that Israel retains ultimate responsibility for overall security and public order in the territories until a final status agreement is achieved.

But Israel hopes the Court will never reach the merits of the case and decide to turn it down on the “jurisdiction” question, which hinges on the UN Charter itself.

According to diplomats and jurists, Article 12 of the Charter states that when the Security Council is discussing an issue, the General Assembly should defer any action on the matter. In this instance, the Security Council adopted a resolution in November endorsing the “Quartet Road Map” as the preferred negotiating track to deal with outstanding issues in the Israeli-Palestinian conflict. Yet only two weeks later the General Assembly asked the Hague tribunal for an advisory opinion on the fence, thereby violating the UN Charter.

Further, UNSC resolution 242 is still operative in its explicit call for resort to negotiations – not litigation – to determine where the “secure and recognized borders” of Israel should be drawn.

MORE FENCES AHEAD

However the Court ultimately rules, Israeli leaders already have been reassured on two counts. First, the desperate Palestinian actions to stop the fence indicate they indeed are extremely worried it will strip them of the “terror” card in negotiations with Israel.

Secondly, significant leaders of free Western societies have stood up to this patent attempt to manipulate international bodies and warp existing norms of international law. Democratic countries are realizing that keeping their own people secure from the threat of global terrorism may require more security fences and military operations in foreign lands in the years to come.